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The Bush administration, which has supported the right of gun ownership, nonetheless told the Supreme Court on Wednesday that a Texas gun dealer — convicted only in Mexico — should not have his license restored.

A lawyer for former dealer Thomas Lamar Bean countered that a lower court properly ruled in favor of giving Bean his license back. Bean, with a clean record in the United States, was convicted after associates left 200 rounds of ammunition in his car during a dinner visit to Mexico four years ago.

Deputy Solicitor General Edwin S. Kneedler argued that the Bureau of Alcohol, Tobacco and Firearms must decide on restoration of a felon's license, and courts only can intervene if an application is improperly denied.

Bean's lawyer, Thomas Goldstein, countered that the court became Bean's only option because Congress — worried that too many felons were getting their gun licenses back — barred the Treasury Department (news - web sites) agency from acting on the applications. Goldstein said the failure to act amounted to a denial of Bean's application.

"We think it is not a denial," Kneedler argued, because the merits of the case never were considered due to the congressional ban on even considering restoration applications.

"ATF is not granting or denying relief. There is no basis for the district court to grant relief at all," Kneedler said.

Congress has renewed its ban annually on consideration of felon applications, prompting Chief Justice William Rehnquist (news - web sites) to ask the Justice Department (news - web sites) lawyer: "Why didn't they just repeal" the entire restoration process instead of passing a new law each year?

"It was a practical compromise," Kneedler said.

Goldstein said the secretary of the treasury also denied Bean's application, since it also went to his office. The secretary, Goldstein said, was not personally covered under the congressional ban.

That argument raised skepticism from several justices, who said nobody would expect the secretary of the treasury to personally make such rulings instead of delegating the decisions to subordinates.

"It just doesn't make sense" that the secretary would personally consider the matter, Rehnquist said.

Goldstein argued, "When ATF turns and sends us a letter and says we're not going to act, that is a denial."

The Bush administration's arguments came despite the Justice Department's stance that the Constitution guarantees a right to gun ownership.

Bean was arrested when he and his three associates tried to return to Laredo with the bullets in Bean's car.

Since carrying ammunition was a crime in Mexico, Bean was held for two months and sentenced to five years in prison. After serving four months in Mexico, he was transferred to a prison in Texas and quickly released on probation.

Bean,60, was a convicted felon and could not even possess a firearm, let alone run a gun business — unless the Treasury Secretary granted an exception.

The Treasury agency that handles such matters, the Bureau of Alcohol, Tobacco and Firearms, informed Bean that it could not process his application for a new license because Congress refused to provide money for restoration investigations.

Bean persuaded a federal district judge in Texas to restore the license, and in June 2001 the ruling was upheld by the 5th U.S. Circuit Court of Appeals (news - web sites).

The administration argues, however, that the executive branch must make the determination since Congress did not grant courts the independent right to restore gun licenses.

The Bush administration has said the case was not about Bean, but other felons who would expect courts to restore their gun privileges.

Since Bean's conviction, Mexico has reduced the charges for importing ammunition to a misdemeanor. The federal judge who ruled in his favor on the gun privileges also found that the Mexican conviction did not classify him as a U.S. felon.

Other federal courts have agreed with the administration that judges should not be making the license decisions. And a Texas state court has determined that Bean is not considered a felon. [end of quote]

The case is United States v. Bean, 01-704.

This is a case where administrative action and inaction is involved. It is common to have statutes which rule applications denied if not addressed in some time period after filing. Some statutes and regulations are in reverse; that is inaction is an acceptance.

I can see why the Court does not like the idea of being put in the position of legislating, but the complexity is such that there is far more to this case than second amendment rights.